P L D 1999 KARACHI 54

ASIF ALI ZARDARI

V/S

FEDRATION OF PAKISTAN AND OTHERS

Per Wajihuddin Ahmed, C.J.

(a) Constitution of Pakistan (1973) Arts. 69(1)(2), 127, 248 & 199In so far as the Chairman of the Senate is concerned, he, upon hearing, recorded a ruling on 13-8-1997 to the effect that the petitioner not having been administered oath of office as Senator was not a member of the Senate and could not, within the terms of rule 72-A aforesaid, be summonted to the House. Such finding and the implicit ingredients are questioned through this petition. It is urged on the factual plane that at no time whatsoever any person elected to an assembly or to the Senate of Pakistan has been denied his right to take oath as a member of such Assembly or as Senator and instances of the petitioner himself, Mir Murtaz Bhutto, Ch. Shujaat Hussain, Masroor Ahsan and Azam Tariq etc. are cited as precedents, claiming in the same breath that it was mala fides and mala fides alone which have operated to prevent the petitioner from exercising his rightful functions as a Member of Parliament.[p. 58]A.

The argument, however, overlooks that it is not each and every act of such officer or member, as is embraced by Article 69(2), inclusive of the Chairman, that is protected. It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus, made immune, though subject to time honoured constraints. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by “formal transaction of business” concomitant to such internal proceedings. Besides, the protection in clause(1) of Article 69 to which clause(2) also is subject, protects only “any irregularity of procedure” and obviously not a patent illegality. Summoning a member to a Session of a House of Parliament does not appear to be a matter, which pertains to the regulation of procedure or conduct of business or maintenance of order in a House of Parliament and is, therefore, speaking strictly, beyond the ambit of immunity, such immunity itself being subject to similar implications as in Article 248 of the Constitution. Even so Courts, and in particular the Superior Courts, where such matters are usually agitated, should be careful in interfering with matters, which squarely fall within the ambit of powers, exercised or exercisable in relation to internal affairs of a House of Parliament or other legislative Authorities in contemplation of Articles 69 and 127 of the Constitution. this arises directly from the doctrine of trichotomy of powers and consequential separation thereof, the latter so well defined in the Constitution of Pakistan. [p. 58, 59]B

The bar of Article 69 does not apply to the order of the Chairman of the Senate. [p. 59] C

In this background, it is manifest that pursuant to a directive being issued under Rule 72-A or for the matter of that Rule 90, to the extent the proceedings against an undertrial prisoner are known, the prisoner himself or even the concerned Government may move for the prisoner to be taken to the relevant House of parliament and, unless good reasons subsist, the relevant Court of law, where the proceedings are taking place and in whose custody the prisoner for the time being happens to be, would not withhold the requisite permission. If more Courts than one are involved and applying to all of them for the requisite permission is cumbersome and has the potential to defeat rule 72-A and 90, as apprehended by the Chairman, such a permission may be sought from the High Court or the High Courts concerned. In all such cases where a requisition issues under either of such rules, the Government agency cannot oppose such a request from the side of the prisoner and in appropriate cases may even itself be obliged to apply for the necessary permission. This is how all the organs of the State, namely, the Legislature, the Executive and the Judiciary can pursue their activities with a view to compliment one another rather than one pulling in one direction and the other in quite another. This has necessary reservations, because none has questioned the vires of rules 72-A and 90 and these rules, being conceded to be peculiar to the Pakistan, Parliament, can obviously invite challenge, thought when and how belong to the domain of pure speculation.

Here, it may also be pointed out that where the said rules of procedure apply the power to summon an undertrial prisoner shall always remain a discretionary power of the Authority (Chairman, Speaker and the like) in which it vests. Next, it is only when “necessary” that such a power can come to be exercised. Lastly, but no less importantly, in exercising such powers the relevant functionary would, all the time, ensure that in virtue of such an exercise the proceedings in the relevant Court of law are not unnecessarily delayed, let alone thwarted. These then are the parameters within which the powers under the referred rule 72-A and 90 are to be exercised.

We may also note here that, as canvassed before us, there are no regulations corresponding to rule 72-A and 90 at the level of Provincial Legislatures. There the pre-existing principles of law would continue to apply, as held in Asif Ali Zardari v. Special Judge PLD 1992 Karachi 430. [p. 64, 65]D

Wherever the word “person” in the relevant context is used in the Constitution, it is to be viewed not otherwise than contextually and nowhere does it emerge that the word “person” is the equivalent of “member” who has duly taken oath. The irresistible conclusion, therefore, is that the person till such time he takes oath is not a member of house of Parliament, in this case the Senate and the Chairman was not in error in holding that to be so. [p. 67, 68]G.

Having examined the controversy from every possible angle, it is manifest that the petitioner has a right and where there is a right, there must be a remedy. High Court allowed the Constitutional petition and required the Provincial and the Federal Governments to make arrangements to allow the person to attend the earliest Session of the Senate of Pakistan. In so doing no further permission from the concerned Court was necessary because that was already there and besides High Court had powers to grant the necessary permission [p. 70]J.

(b) Constitution of Pakistan (1973) Art 199

Constitutional jurisdiction of High Court—Issuance of writs to legislative bodies—Scope.

In the first of these cases, it has been observed and quite correctly that it is only in exception cases that writs can issue pertaining to legislative bodies and such may be instances where there has been a clear violation of statutory law or when principles of natural justice have been violated or, perhaps, where there has been a mala fide discrimination against an individual to the detriment of his rights. There may be other situations as well and it is impossible to define such matters with any exactitude. [p. 68] H